From EU Non-Paper / Provisions on International Monitoring UN-Disability Convention

Whilst remaining open to further new and innovative ideas on monitoring mechanisms, the EU would propose the following as a basis for discussion:

Article 34Committee on the Human Rights of Persons with Disabilities

1. For the purpose of reviewing this implementation by States Parties of the present Convention, there shall be established a Committee on the Human Rights of Persons with Disabilities (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided.
(CEDAW, article 17, para.1)

2. In carrying out its functions the Committee shall provide full participation for persons with disabilities, both in terms of access and participation in the monitoring process, including with respect to meeting venues, documentation and interpretation.
(from OHCHR background paper)

European UnionOn Monitoring

Article 35EU would propose the following as a basis for discussion on monitoring mechanisms:

Establishment of the Committee

The Committee shall consist, at the time of entry into force of the Convention, of twelve, and after ratification of or accession to the Convention by the thirty-fifth State Party, of eighteen members of high moral standing, who do not hold any position in the executive branch of their government and have a recognized competence, knowledge and experience in the field of human rights and disabilities. They shall be elected by States Parties from among their nationals and shall serve in their personal capacity, consideration being given to equitable geographical distribution, to gender balance and to the representation of the principle legal systems.

(CEDAW, article 17, para.1 amended)

The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties of the present Convention. Each State Party may nominate two candidates in consultation with representative organizations of persons with disabilities or other relevant groups.

(a) The nominees shall have the nationality of a State Party to the present Convention;
(b) At least one of the two candidates shall have the nationality of the nominating State Party;
(c) No more than two nationals of a State Party shall be nominated;
(d) Before a State Party nominates a national of another State Party, it shall seek and obtain the consent of that State Party.
(CEDAW, article 17, para.2, merged with Art 6 para 2 OPCAT)

States Parties shall bear in mind the usefulness of nominating persons who are also members of other United Nations human rights treaty monitoring bodies and who are willing to serve on the Committee on human rights of persons with disabilities.

(2nd sentence from CAT, article 17, para 2, amended)

The initial election shall be held six months after the date of the entry into force of the present Convention. At least three months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

(CEDAW, article 17, para. 3)

Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General of the United Nations at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

(CEDAW, article 17, para. 4)

The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election once if renominated. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee.

(CEDAW, article 17, para. 5 merged with OPCAT, art. 9)

The election of five additional members of the Committee shall be held in accordance with the provisions of paragraphs 2, 3 and 4 of this article, following the thirty-fifth ratification or accession. The terms of two of the additional members elected on this occasion shall expire at the end of two years, the names of these two members having been chosen by lot by the Chairman of the Committee.

(CEDAW, article 17, para. 6)

If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform his or her Committee duties, the State Party which nominated him or her shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the Committee.

(OPCAT, article 8, amended)

The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee’s responsibilities.

(ICCPR, article 35)

The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Convention.

(CRC article 43,

Article 36EU would propose the following as a basis for discussion on monitoring mechanisms:Organization of the Committee

The Committee shall adopt its own rules of procedure.

The Committee shall elect its officers for a term of two years.

(CEDAW, article 19, para. 1, 2)

The Committee shall from among its members elect a Chairperson who will represent the Committee to the public and engage in outreach and advocacy activities to promote the implementation of the present Convention.

Article 37EU would propose the following as a basis for discussion on monitoring mechanisms:

Meetings of the Committee

The meetings of the Committee shall normally be held at United Nations Headquarters in Geneva. The Committee shall normally meet annually. The duration of the meetings of the Committee shall be determined, and reviewed, if necessary, by a meeting of the States Parties to the present Convention, subject to the approval of the General Assembly.
(CRC, article 43, para 10, amended)

Article 38EU would propose the following as a basis for discussion on monitoring mechanisms:

Reporting by States Parties

States Parties to the present Convention undertake to submit to the Secretary-General of the United Nations, for consideration by the Committee, a general comprehensive report on legislative, judicial, administrative or other measures they have adopted which give effect to the rights recognized herein. The report shall indicate factors and difficulties, if any, affecting the degree of the fulfilment of the obligations under the present Convention. The report shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the State Party concerned.

(CRC, article 44, para.1 merged with para 2)

States Parties shall submit this report within two years of the entry into force of the present Convention for the State Party concerned. Thereafter, the States Parties shall submit reports responding to a list of issues determined by the Committee whenever the Committee so requests, bearing in mind the need for the Committee to review all States Parties’ compliance with the Convention on a regular basis.

States Parties shall ensure that reports are prepared through an open and transparent process in consultation with all national stakeholders. They may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Convention and may also indicate prospective measures envisaged to implement the provisions of the Convention.

(CEDAW, article 18 para. 2, amended)

Article 39

Eu Response common
Article 39 – Reporting by States Parties

2. The States Parties shall submit a first, comprehensive report, taking into account where necessary gender and childspecific issues within two years of entry into force of the present Convention for the State party concerned (CRC, art 44.1). States Parties shall submit further reports upon request of the Committee. The Committee shall determine the issues or provisions of the present convention to be addressed by States Parties in these reports (OHCHR background paper, para 37).

Article 39EU would propose the following as a basis for discussion on monitoring mechanisms:

Consideration of reports

The Committee shall examine the reports submitted under article 38 and transmit comments and recommendations to a State Party if deemed necessary.

(CAT, article 19, para 3 shortened)

Where a State Party is overdue with the submission of its reports, the Committee may consider the situation in that State Party in the absence of a report.

[Article 39bis

Complaints by individuals or groups of individuals

The issue of an individual complaints mechanism is still under consideration by the European Union.]

Article 40EU would propose the following as a basis for discussion on monitoring mechanisms:

Inquiry procedure

If the Committee has reliable information indicating grave or systematic violations by a State Party of rights set forth in the present Convention, it shall invite that State Party to cooperate in the examination of the information and, for this purpose, to submit observations with regard to the information concerned.

Taking into account any observations that may have been submitted by the State Party concerned, as well as any other reliable information available to it, the Committee may conduct an inquiry.

After examining the findings of such an inquiry, the Committee shall transmit these findings together with any comments and recommendations to the State Party concerned.

The State Party concerned shall, within six months of receiving the findings, comments, and recommendations transmitted by the Committee, submit its observations to the Committee.

Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its biannual report made in accordance with article 41 of the present Convention.

(CAT, article 20; Opt. Prot. CEDAW, article

Article 41EU would propose the following as a basis for discussion on monitoring mechanisms:

Country visits

The Consideration by the committee of a report or of a complaint submitted under articles 38 and 39bis as well as the conduct of an inquiry under article 40 can lead, where warranted, to a visit to the territory of the concerned State Party. In order to facilitate the performance of such a visit, the Committee shall seek the cooperation of the respective national monitoring authorities.

Article 42EU would propose the following as a basis for discussion on monitoring mechanisms:

Follow-up procedure

Upon request by the Committee the State Party concerned shall submit a response to its comments and recommendations in the form requested by the Committee.

Article 43EU would propose the following as a basis for discussion on monitoring mechanisms:

Report of the Committee

The Committee shall prepare, a report on its activities and priorities including general assessment of the implementation of the rights of the present Convention every two years.

(CEDAW, article 21, para. 1 shortened)

The Committee shall present its reportto the States Parties of the present Convention and to the General Assembly of the United Nations.

[The EU, in its Non-paper on International Monitoring, has proposed a more general language on cooperation between the treaty monitoring body and other UN bodies which would avoid enumerating all the UN bodies and departments concerned.]

Article 44EU would propose the following as a basis for discussion on monitoring mechanisms:

Meeting of the States Parties

The Committee shall invite States Parties to meet regularly in order to conduct an exchange of information, experience and best practices with regard to the application or implementation of this Convention.

States not parties to this Convention, as well as the United Nations, other relevant international organizations or institutions, regional organizations, and relevant non-governmental organizations may be invited to attend these meetings as observers.

(Ottawa Convention, article 11, para 4, modified)

Article 45EU would propose the following as a basis for discussion on monitoring mechanisms:

Disclosure Requirement

States Parties shall make their reports, the comments and recommendations of the Committee and the outcome of the follow-up procedure widely available to the public of their own countries. (CRC, article 44, para.6 modified)

Article 46EU would propose the following as a basis for discussion on monitoring mechanisms:

Cooperation with other (UN-)Institutions

The Secretary-General of the United Nations shall transmit the biannual report of the Committee to the Economic and Social Council, the Commission on Human Rights of the United Nations, the Commission on Social Development of the United Nations and other relevant bodies for their information.

(CEDAW, article 21, para. 2 modified)

The Committee shall consult other treaty bodies instituted by relevant United Nations human rights instruments with a view to facilitating the consistency of their respective comments and recommendations and may invite members of such bodies to take part in its deliberations.

(Draft Enforced Disappearances, article 28, para 2 modified)

The Committee may cooperate with all relevant organs, offices and specialised agencies and funds of the United Nations, with the special procedures of the United Nations, and with regional intergovernmental organisations or bodies working toward the promotion and protection of the rights of persons with disabilities.

(Draft Enforced Disappearances, article 28, para 1, modified)

The Committee may invite representatives of non-governmental organizations with expertise in the field of disability issues or other relevant fields as well as national human rights institutions to submit relevant information that would assist the Committee in its work.

Article 47EU would propose the following as a basis for discussion on monitoring mechanisms:

Provision for State Party to opt out of inquiry procedure

A State Party may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 45 of the present Convention.

Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General.

Article 48EU would propose the following as a basis for discussion on monitoring mechanisms:

Review

The Secretary-General of the United Nations may convene a Conference of States Parties to evaluate the functioning of the Committee and to decide whether it is appropriate to transfer to another body – without excluding any possibility - the monitoring of this Convention.
(Draft Convention on Enforced Disappearances, article 27, shortened)

INDIA

International MonitoringComments from the Indian Delegation

Mr. Chairman,

We would like to thank the delegations which have provided us a framework for discussion on international monitoring. Without prejudice to the draft proposals contained in the Articles 34 and 35, we would like to reserve our detailed comments for following reasons:

i) We would like to see the current efforts to create a new international body for monitoring in the light of ongoing efforts to reform Treaty-bodies. It would be useful to benefit from the ongoing reform process of Treaty-bodies, and we should not jump to conclusion on the nature of monitoring. We also believe that national monitoring is important for successful implementation of the commitments undertaken by the State Parties;

ii)As mentioned by delegations which spoke earlier, we would like to have detailed discussion in this Committee on using the existing Treaty bodies for realising the same goals, which a separate body would aim to achieve, before considering the creation of a new international body.

We seek your indulgence for giving more time to delegations to make comments on substantive elements of international monitoring during the next session of the Ad Hoc Committee.

Thank you, Mr. Chairman.

UNITED STATES OF AMERICA

From the US Non-Paper on International Monitoring
The United States strongly supports the need for effective international monitoring.

In view of the widespread acknowledgement of the need for treaty body reform and the specific proposals of the High Commissioner on Human Rights in this regard, the creation of a new body at this juncture seems inappropriate. Creating a new body would be a disincentive to reform with unacceptable financial consequences.

Instead, the United States suggests the use of existing monitoring bodies to perform the monitoring function under this Convention.

The United States believes that mainstreaming disabilities issues into the existing system is consistent with the philosophy of the draft convention, which is to ensure that persons with disabilities are entitled to the full and equal enjoyment of the same rights as all other people.

Mainstreaming disabilities issues into existing bodies is also desirable for reasons of:

existing expertise on non-discrimination;

consistency of jurisprudence;

efficiency;

avoidance of redundancy; and

cost savings.

Existing monitoring bodies already have jurisdiction over the issues covered in the draft convention. For example, the Human Rights Committee already has jurisdiction over discrimination against persons with disabilities. See, e.g., ICCPR Article 26 (“discrimination …on any ground…or other status”).

Existing monitoring bodies have already dealt with disabilities issues. For example, the Human Rights Committee has considered individual complaints of discrimination on the basis of disabilities. Moreover, a number of states currently incorporate disabilities issues into their reporting to international monitoring bodies.

The United States would welcome the opportunity to engage in a dialogue on how to integrate disabilities perspectives and disabilities-related expertise, as well as appropriate and effective new working methods, into existing bodies. The United States believes that creative solutions are possible in this regard.

In this way, mainstreaming disabilities issues – including the very constructive participation of civil society – into existing bodies could serve to reinvigorate these bodies and thus be a positive force in favor of the reform that all agree is badly needed.

New York, February 3, 2006

UN System Organizations

INTERNATIONAL LABOUR ORGANIZATION

ILO views on draft Article 34 International Monitoring

Regarding the international monitoring of implementation, the ILO would welcome provisions in the Convention for mechanisms which facilitate the involvement of all relevant stakeholders - governments, the social partners, representative organizations of persons with disabilities, specialized United Nations agencies and other UN organs, in their respective areas of competence.

Regarding ILO involvement, the following wording is suggested:

For the purpose of reviewing the application of the present Convention, there shall be established a Committee on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (details to be added by the Ad Hoc Committee).

The Secretary-General of the United Nations shall, in due time before the opening of each regular session of the Committee, transmit to the Director-General of the International Labour Office copies of the reports submitted by States Parties concerned and information relevant to the consideration of these reports, in order to enable the Office to assist the Committee regarding those matters dealt with by the present Convention that fall within the sphere of competence of the International Labour Organization. The Committee shall consider in its deliberations such comments and materials as the Office may provide

National
Human Rights Institutions

NATIONAL HUMAN RIGHTS INSTITUTIONS

Intervention by National Human Rights InstitutionsMonday, 23 January 2006

International level monitoring
(Continued from Article33)

International monitoring is not an end in itself – it is a means to the end of ensuring that change happens where it counts most – in the countries where people with disabilities live. It will be judged by whether it adds value to domestic processes of change. We believe it can.

National institutions consider that effective international monitoring of the new treaty will require a committee of independent experts similar to those which exist under other UN human rights treaties. The Committee should be given the functions of:

• Considering regular reports from States parties on their implementation of the Convention – the reporting procedure should be a flexible one, with the Committee having the power to tailor the periodicity of reporting, and the content of reports requested from States, and should contain a clear mandate for follow-up

• Considering complaints from individuals and groups who claims that the State has failed to fulfil its obligations under the Convention

• Conducting inquiries on its own motion into situations where there are gross, systematic or serious violations of the rights guaranteed in the Convention

• Adopting general comments on the implementation of the Convention as a means to assisting States parties and others in its implementation.
In addition to these functions, which a number of the existing treaty bodies already perform under their treaties, we see the Committee as playing a proactive role: it should have the power to undertaken thematic studies to point the way toward rational and principled reform, to undertake visits, and to provide assistance to States parties and to national institutions to support implementation of the Convention.

Due to the historic neglect of persons with disabilities National Institutions consider that innovative methods are appropriate for the selection of members of the Committee, to ensure that all members of the Committee bring to it relevant expertise in disability, human rights or other relevant fields; that the Committee has strong representation of persons with disabilities; that members do not hold any position which is inconsistent with the independence expected of a Committee members; and that they have the time and commitment required to undertake the onerous duties of a Committee member.

In particular, we propose:

(a) any persons nominated by States parties should normally be put forward only after genuine consultation with representative organisations of persons with disabilities

(b) half the members of the Committee would be chosen by States parties from persons nominated by States; the other half of the members would be chosen by States parties from a list of persons nominated by the UN High Commissioner for Human Rights after due consultation with representative organizations of persons with disabilities.

We also see it as important to provide explicitly for the participation of persons with disabilities and DPOs in the work of the Committee more generally.

We are aware that the process of treaty body reform may ultimately lead to the establishment of a new unified standing treaty body to replace the existing committee. However, that seems some way off, and we believe that this possibility can be provided for. A provision in the treaty which left open the possibility of transferring the committee’s function to a new super-treaty body – along the lines of the article in the draft Disappearances Convention -- could be included in the Convention. However, any such transfer should be conditional on the possession by the new committee’s members of relevant expertise in disability issues and on ensuring the participation of persons with disabilities as members and non-governmental organisations in the work of the committee.

We also support the establishment of a Global Disability Advocate or Ombudsperson to complement the role of the Committee. We need more than the law – we need an international champion of the law.

Conclusion

In conclusion, the OHCHR’s paper and our own proposals, as well as those of the IDC, provide a basis for taking this issue to the next level. We believe that the next logical step in moving the debate forward would be if you, Mr Chair, were to introduce a draft text for discussion by the Ad Hoc Committee, if possible during this session..
Thank You.

Non-governmental organizations

INTERNATIONAL
DISABILITY CAUCUS

I. Publicity

States Parties undertake to widely disseminate this Convention as well as periodic reports, general comments, and other pronouncements of its subsidiary bodies. States Parties shall make every effort to disseminate the materials set forth in this provision in accessible formats.

II. Committee on the Rights of Persons with Disabilities

A. Establishment of Committee

1. For the purpose of reviewing the implementation by States Parties of this Convention, there shall be established a Committee on the Rights of Persons with Disabilities (hereinafter referred to as "the Committee") which shall carry out the functions hereinafter provided.

2. The Committee shall consist, at the time of entry into force of this Convention, of 12 independent experts serving in their personal capacity, of high moral standing and impartiality, holding no position which compromises the appearance of independence and impartiality expected of the Committee, and shall have a recognized competence in the field covered by the Convention. Thereafter, for every additional twenty-five ratifications of this Convention, the membership shall increase by 2 members, until the composition of the Committee attains a maximum number of 20 members. This Committee shall:

be composed of members who are all persons with disabilities

have equitable representation of persons with disabilities with diverse disability experience;

comprise an equal number of women and men members;

shall include members with expertise on the issues of women with disabilities

reflect equitable geographic distribution;

reflect representation of the principal legal systems; and

shall include members with expertise on children with disabilities.

3. Each State Party may nominate up to two persons, chosen from a list of individuals proposed by organizations of persons with disabilities in that State. The nomination shall include one women and one man. If no individuals are nominated by organizations of persons with disabilities in a State Party, the State Party may select a nominee, wherever possible in consultation with organizations of persons with disabilities or other appropriate groups.

4. The nominated persons will be short listed by a joint State party and International Disability Caucus/International Disability Alliance selection committee convened by the Secretary General. The Selection Committee will present a short list of no more than 15 nominees for election. The members of the Committee shall be elected by secret ballot by the States Parties from such list of persons nominated by the States Parties. As the membership of the Committee increases, the number of nominees allowed shall increase proportionately.

5. The initial election shall be held no later than six months after the date of the entry into force of this Convention and subsequent elections every second year. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to all States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order, including indication of sex, of all persons thus nominated, indicating the States Parties that have nominated them, and shall submit it to the States Parties not later than one month before the date of the corresponding election, together with the curricula vitae of the persons thus nominated.

6. Elections of members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at United Nations Headquarters. At that meeting, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the States Parties present and voting.

7. The members of the Committee shall serve for a term of four years. However, the terms of five of the members elected in the first election shall expire at the end of two years; immediately after the first election, the names of these five members shall be chosen by lot by the Chairperson of the meeting of States Parties.

8. The members of the Committee shall be eligible for re-election if renominated, but no person may serve more than two full terms on the Committee.

9. If a member of the Committee dies or resigns or declares that for any other cause he or she can no longer perform the duties of the Committee, the State Party that nominated the expert shall appoint another expert, in accordance with this Article, for the remaining part of the term. The new appointment is subject to the approval of the Committee.

B. Administration of the Committee

1. The Committee shall elect its officers for a period of two years. The Chair of the Committee shall be a person with a disability.

2. The Committee shall adopt its own rules of procedure. In establishing its rules of procedure, the Committee shall be guided by and take into its consideration the rules of procedure adopted by other human rights treaty bodies and shall consult with the Office of the High Commissioner for Human Rights.

3. The Committee shall meet for such time as is necessary for it to undertake its work, and this shall involve at least one meeting of per year for a period of three weeks.

4. The meetings of the Committee shall be held at United Nations Headquarters and on a rotational basis at the offices of the regional commissions of the United Nations.

5. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee.

6. The members of the Committee shall receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide.

7. The members of the Committee shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

C. Reporting by States Parties

1. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, an initial report on the legislative, judicial, administrative and other measures they have taken to give effect to the provisions of the present Convention. States Parties shall ensure participation, on the basis of equality between women and men, at all stages of the monitoring process of this Convention.

2. States Parties shall submit an initial report within one year of the entry into force of the Convention for the State Party concerned and thereafter every four years or whenever the Committee so requests in accordance with article [ ] with respect to national action plans.

3. Reports prepared under the present article shall also indicate factors and difficulties, if any, affecting the implementation of the Convention in the State Party concerned, and shall be prepared in consultation with non-governmental organizations with competence in the field, including organizations of persons with disabilities.

4. The Committee shall adopt any further guidelines relating to the content of the reports, which it considers appropriate. These guidelines must be evolved to ensure gender, age and indigenous disaggregated reporting by States Parties. Such guidelines must also take into account the particular situation of persons with disabilities who are not visible in society.

5. A State Party which has submitted a comprehensive initial report to the Committee need not in its subsequent reports submitted in accordance with this article repeat basic information previously provided.

6. States Parties shall make a draft of their reports widely available to the public in their own country in local languages and accessible formats six months prior to the finalisation of the report and its submission to the Secretary-General.

7. States Parties shall make their reports widely available to the public in their own countries in local languages and in accessible formats as soon as possible after the State Party has submitted its report to the Secretary-General.

D. Consideration of Reports

1. Each report shall be considered by the Committee, which shall issue such comments, observations or recommendations as it may deem appropriate. The comments, observations or recommendations shall be communicated to the State Party concerned, which may respond to them, on its own initiative or at the request of the Committee.

The Committee may also request further information from State Parties relevant to the implementation of this Convention.

2. The Committee shall invite representatives of States Parties to participate in its consideration of the report. Where a State Party is overdue with the submission of its report, the Committee may consider the situation in that State Party in the absence of a report.

3. The Committee may also adopt such general comments as it sees fit, and may also address recommendations to the United Nations and other bodies as it considers appropriate.

4. The Secretary-General of the United Nations may also, after consultation with the Committee, transmit to the specialized agencies as well as to intergovernmental organizations, copies of such parts of these reports as may fall within their competence in order to enable the specialized agencies to assist the Committee with their expertise. The Committee shall consider in its deliberations such comments and materials as the specialized agencies may provide.

5. The Committee shall present an annual report to the General Assembly of the United Nations on the implementation of the present Convention, containing its own considerations and recommendations, based, in particular, on the examination of the reports and any observations presented by States Parties. Such reports shall be made available in accessible formats.

6. The Secretary-General of the United Nations shall transmit the annual reports of the Committee to the States Parties to the present Convention, the Economic and Social Council, the Commission on Human Rights of the United Nations, the Commission on Social Development of the United Nations and other relevant organizations.

7. United Nations Member States, which are not parties to the Convention, may, on a voluntary basis, provide reports to the Committee for consideration.

E. Relationship between the Committee and other Bodies

To foster the effective implementation of the Convention, to encourage coordination among relevant stakeholders and to encourage international cooperation in the field covered by the Convention:

1. The Committee shall request the specialized agencies, organs, special and thematic rapporteurs, of the United Nations, regional commissions of the United Nations, as well as intergovernmental organizations and other concerned bodies to submit, for consideration by the Committee, written information on such matters dealt with in this Convention as fall within the scope of their activities.

2. The Committee shall invite representatives of specialized agencies, organs, special and thematic rapporteurs of the United Nations, as well as of intergovernmental organizations, to participate, in a consultative capacity, in the meetings of the Committee whenever matters falling within their field of competence are considered.

3. The Committee shall seek, as relevant, technical assistance from the specialized agencies, organs, special and thematic rapporteurs of the United Nations and other relevant bodies to assist it in its consideration of the reports of States Parties.

4. The Committee may recommend areas of cooperation among States Parties and other competent bodies that will facilitate the implementation of this Convention. To this end, the Committee shall make its recommendations to the Secretary-General of the United Nations.

5. The Committee shall invite national human rights institutions/national mechanisms and/or focal points, representatives of disabled persons organizations and of non-governmental organizations with expertise in the field of disability issues or other relevant fields, and other relevant bodies to submit relevant information to the Committee to assist it in its work and to be present and to be heard in its meetings.

1. State Parties shall establish an international coordinating committee composed of the Office of High Commissioner of Human Rights, the Department of Economic and Social Affairs, the UN specialized agencies and organs, and international organizations representing persons with disabilities (“the International Coordinating Committee on Disability Policy”.

2. The function of the International Coordinating Committee on Disability Policy shall be to serve as a forum to share and coordinate issues of disability policy relevant to the respective mandates of the international agencies.

1. A State Party to the Convention may at any time declare under the present article that it does not recognize the competence of the Committee to receive and consider complaints from or on behalf of individuals subject to its jurisdiction who claim that their individual rights as established by this Convention have been violated by that State Party.

2. Complaints may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. A complaint submitted on behalf of individuals or groups of individuals shall only be admissible if the individuals or groups of individuals in question have been informed about the complaints and have not freely expressed their denial of consent to the complaint.

3. Complaints shall be in writing and shall not be anonymous. No complaints shall be received by the Committee if it concerns a State not a party to this Convention.

Requests for interim measures

1. At any time after the receipt of a complaint and before a determination on the merits has been reached, the Committee may transmit to the State Party concerned for its urgent consideration a request that the State Party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation.

2. Where the Committee exercises its discretion under paragraph 1 of the present article, this does not imply a determination on admissibility or on the merits of the complaint.

Transmission of complaint to State Party

1. Unless the Committee considers a complaint inadmissible without reference to the State Party concerned, and provided that the individual or individuals consent to the disclosure of their identity to that State Party, the Committee shall bring any complaint submitted to it under this article confidentially to the attention of the State Party concerned.

2. Within three months, the receiving State Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been provided by that State Party.

Consideration of complaints, adoption of views and follow up

1. The Committee shall consider complaints received pursuant to this Convention in the light of all information made available to it by or on behalf of individuals or groups of individuals and by the State Party concerned, provided that this information is transmitted to the parties concerned.

2. After examining a complaint, the Committee shall transmit its views on the complaint, together with its recommendations, if any, to the parties concerned.

3. The State Party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

4. The Committee may invite the State Party to submit further information about any measures the State Party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party's subsequent reports under this Convention.

Exhaustion of domestic remedies and admissibility conditions

1. The Committee shall not consider a complaint unless it has ascertained that all available domestic remedies have been exhausted, unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.

2. The Committee shall declare a complaint inadmissible where:

(a) The same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement;

(b) It is incompatible with the provisions of the Convention;

(c) It is manifestly ill-founded or not sufficiently substantiated;

(d) It is an abuse of the right to submit a complaint; or

(e) The facts that are the subject of the complaint occurred prior to the entry into force of this Convention for the State Party concerned unless those facts continued after that date.

H. Establishment of Inquiry Procedure

1. If the Committee receives reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention, the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the State Party concerned as well as any other reliable information available to it, the Committee may designate one or more of its members to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State Party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State Party concerned together with any comments and recommendations.

4. The State Party concerned shall, within six months of receiving the findings, comments and recommendations transmitted by the Committee, submit its observations to the Committee.

5. Such an inquiry shall be conducted confidentially and the cooperation of the State Party shall be sought at all stages of the proceedings.

Follow-up to Report of Inquiry

1. The Committee may invite the State Party concerned to include in its report under article [ ] of the Convention details of any measures taken in response to an inquiry conducted under article [ ] of the Convention.

2. The Committee may, if necessary, after the end of the period of six months referred to in the preceding article, invite the State Party concerned to inform it of the measures taken in response to such an inquiry.

Provision for State Party to opt out of inquiry procedure:

1. A State Party may, at the time of signature or ratification of the Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article [ ].

2. Any State Party having made a declaration in accordance with paragraph 1 of the present article may, at any time, withdraw this declaration by notification to the Secretary-General

I. Reports on Protection against retaliation in respect of any Complaints with the Committee

A State Party shall take all appropriate steps to ensure that individuals under its jurisdiction are not subjected to ill treatment or intimidation as a consequence of communicating with the Committee pursuant to the Convention.

J. Reports on Complaints and Inquiry Procedures

The Committee shall include in its annual report a summary of its activities under the complaints procedure and the inquiry procedure.

III. Relationship Between the Committee and National Mechanisms

In regard to the national mechanisms, the Committee shall:

a. Advise and assist States Parties, when necessary, in their establishment;

b. Maintain direct, if necessary confidential, contact with the national mechanisms and offer them training and technical assistance with a view to strengthening their capacities;

c. Advise and assist them in the evaluation of the needs and the means necessary to strengthen the protection and promotion of the rights of persons with disabilities;

d. Make recommendations and observations to the States Parties with a view to strengthening the capacity and the mandate of the national mechanisms for the promotion and protection of the rights of persons with disabilities; and

e. Cooperate, for the promotion and protection of the rights of persons with disabilities in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organizations, particularly organizations of persons with disabilities, working toward the strengthening of the rights of men and women with disabilities.

IV. National Action Plans

States Parties undertake to ensure the full realisation of all human rights and fundamental freedoms for all individuals within their jurisdiction without discrimination of any kind on the basis of disability. To this end, States Parties undertake to develop, periodically update, publish and make available a national plan of action for the full, effective and equal enjoyment of the human rights of persons with disabilities, which shall reflect the obligations set forth in this Convention. Such national action plans shall be developed in consultation with persons with disabilities and their representative organizations.

V. Disability Rights Advocate

1. The Disability Rights Advocate shall:

(a) Be a person with a disability of high moral standing and personal integrity and shall possess expertise in the field of human rights as they relate to disability;

(b) Be appointed by the Secretary-General of the United Nations on the recommendation of the High Commissioner for Human Rights, following consultation with organizations representing persons with disabilities, with due regard to geographical rotation and equitable representation of diverse disabilities, and have a fixed term of four years with a possibility of one renewal for another fixed term of four years;

(c) Be of the rank of Assistant-Secretary-General and be independent of, but supported by, the Office of the High Commissioner for Human Rights;

(d) Be the United Nations official with principal responsibility for promoting United Nations activities relating to the human rights of persons with disabilities under the direction and authority of the Secretary-General;

2. The Disability Rights Advocate responsibilities shall include:

To promote ratification and implementation of this Convention;

To promote and protect the effective enjoyment of the human rights of persons with disabilities and prevent violation of such rights;

To provide advice and assistance to governments at their request on the implementation of their obligations under this Convention;

To coordinate the activities of relevant United Nations bodies, programmes, specialized agencies, international organizations, non-governmental organizations and international financial institutions in the fields related to this Convention, to encourage them to mainstream fully in their work the human rights of persons with disabilities, and to facilitate, where appropriate, the inclusion of issues relating to this Convention in relevant United Nations missions, field presences and national offices; and

To collaborate closely with the Committee on the Rights of Persons with Disabilities and with other human rights treaty monitoring bodies;

3. The Disability Rights Advocate shall perform his/her functions in such as he or she considers appropriate.

4. The Disability Rights Advocate shall report annually on his/her activities, in accordance with his/her mandate, to the Commission on Human Rights/Human Rights Council and to the General Assembly.

VI. Conference of States Parties

1. There shall be a Conference of States Parties (hereinafter, "the Conference"), which shall have the object to:

a) Evaluate the operation and status of this Convention;

b) Promote international cooperation and assistance in accordance with the Convention;

c) Consider the recommendations and suggestions put forward by the Committee; and

d) Elaborate a final report on the agreements reached at the Conference and submit it to the Secretary General of the United Nations.

2. The first Conference shall be convened by the Secretary General within a period of one year following the entry into force of this Convention. Subsequent meetings shall be convened by the Secretary General every three years, or whenever he or she deems necessary, and shall be held at the headquarters of the United Nations.

3. The Conference shall establish its own rules of procedure which shall inter alia, stipulate that:

Two thirds of the States Parties shall constitute quorum; and

Conference decisions shall be adopted by a majority of votes from the members present.

4. States not Party to this Convention, specialized bodies and competent agencies of the United Nations system, and disabled persons organizations, regional and non-governmental organizations may be invited to attend these meetings as observers, in accordance with the agreed rules of procedure.

5. The Secretary General shall provide the resources, personnel, and services required to hold the Conferences of States Parties.

Women’s IDC Proposals on inclusion of gender aspects in a specific article23.01.2006Article 34

INTERNATIONAL MONITORING

Ensure that article 34 includes requirement that reporting provide specific information on the enjoyment of all rights by women and girls with disabilities.

Ensure that women with disabilities are involved and participate fully in all levels of the monitoring process.

Ensure that experts on the issues of women with disabilities are members of the Monitoring Committee.

Include a provision regarding balanced gender representation of the Monitoring Committee, e.g.:

In the composition of the Monitoring Committee consideration shall also be given to balanced gender representation on the basis of the principles of equality and non-discrimination.

JUSTIFICATION:These provisions are necessary to ensure that the female perspective is included in the monitoring process. Thus the chance to forget important areas of the life of women with disabilities is minimized.

3. In order to foster the effective implementation of the Convention and to encourage international cooperation in the field covered by the Convention (CRC, article 45, chapeau) the relevant organs, offices and specialized agencies and funds of the United Nations, in particular the Department of Economic and Social Affairs, International Labour Office, the World Health Organization, the United Nations Educational, Scientific and Cultural Organization, the Division for the Advancement of Women, the United Nations Development Fund for Women, and the United Nations Children's Fund, shall be entitled to be represented at the consideration of the implementation of such provisions of the present Convention as fall within the scope of their mandate. The Committee may invite these organs, offices and specialized agencies and funds and other competent bodies as it may consider appropriate to provide expert advice on the implementation of the Convention in areas falling within the scope of their respective mandates and may invite them to submit reports on the implementation of the Convention in areas falling within the scope of their activities (CRC, article 45(a))

Women’s IDC
Women’s IDC supports the IDC proposal for a monitoring system of this Convention. Concerning the Chair’s Discussion Text the proposed amendments by the Facilitator are welcome. However, the discussion text yet needs a closer look concerning the question how to ensure a gender balanced monitoring mechanism, including the adequate participation of women with disabilities and their organisations.

Footnotes:

Article 5 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 18 December 2002 by GA resolution A/RES/57/199

JAPAN DISABILITY FORUM

Article 34 INTERNATIONAL MONITORING

There is no provision in draft article 34 dealing with international monitoring. The monitoring provisions of this convention would be flexible enough to take account of the outcomes of the reform work of the existing treaty bodies, and the report prepared by the Office of the High Commissioner for Human Rights and other proposals would be considered at the seventh session of the Ad Hoc Committee. In elaborating the monitoring provisions, it is important to stress at least the following points:

"There was general agreement that the convention needed to include an article on both national and international monitoring", "There was agreement that the monitoring provisions of this convention should be at least as good as, and preferably better, than those of other treaties", and "there was general support for the involvement and full participation of civil society of both persons with disabilities and their representative organizations, in all levels of the monitoring process".

Note: MDRI considers that, outside a flexible periodic reporting process (as sufficiently specified in the Chair’s discussion paper on international monitoring), the two key elements of any effective international supervisory or monitoring body are: (1) an individual communications procedure, and (2) a non-confidential procedure for inquiries, precautionary measure and onsite visits. Without these procedures, the treaty body for the Convention on the Rights of Persons with Disabilities will lack the ability to respond effectively to concrete situations of abuse affecting persons with disabilities and to effectively accompany processes of effective response.

In this line, we offer the following suggested textual amendments to the Chair’s discussion paper, which we hope delegates will take up at the 8th Session of the Ad Hoc Committee. They draw broadly from the functions of the Inter-American Commission on Human Rights, as set out in the American Convention on Human Rights. In MDRI’s experience in regions around the world, this quasi-adjudicatory body—enjoying both promotional and protective functions—has provided the greatest protection to persons with disabilities suffering abuse of their internationally-recognized rights, as well as assistance to States in accompanying the process of reform. This is due to its broad and flexible mandate and the discretion left in the Commission itself to determine the nature of its response to different situations and the time-lines for, and nature of, the information that should be submitted to it by States Parties. We hope that it will provide a model for the Committee on the Rights of Persons with Disabilities.

Article 34 – Committee on the Human Rights of Persons with Disabilities

[DELETE] For the purpose of examining the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention, there shall be established a Committee on the Rights of Persons with Disabilities (the Committee).

REPLACE with “A Committee on the Rights of Persons with Disabilities (the Committee) shall be established for the purpose of monitoring fulfillment of the commitments made by the States Parties to this Convention.”

[Justification: the purpose of the Committee should go beyond “examining progress,” which appears to refer to the periodic reporting process only.]

Article 35 – Establishment of the Committee

1. The Committee shall consist of eighteen experts of high moral standing, and recognized competence and experience in the field covered by this Convention [replace “covered by this Convention” with “of human rights and disability”].

2. . . .

3. The members of the Committee shall be elected by secret ballot from a list of candidates possessing the qualifications and meeting the requirements set out in paragraphs 1 and 2 of this article, half of which is to be nominated by States Parties, and half of which is to be nominated by the [MAINTAIN ONLY “High Commissioner for Human Rights”.]

4. Each State party may nominate one person from among its nationals [DELETE: “from among its nationals”—too prescriptive] in consultation with competent national bodies. [Nominations by the Secretary-General/High Commissioner for Human Rights shall also be made in consultation with competent national bodies.]
. . . .

[ADD NEW ARTICLE 38bis – Functions of Committee.This is necessary to ensure Committee’s mandate is broad and flexible. Details can be spelled out in Committee’s Rules of Procedure. The following proposed text comes from Article 41 of the American Convention on Human Rights, with amendments to make it specific to the rights of persons with disabilities. It uses broad language to ensure that the Committee has the functional competence to adopt ad-hoc procedures as necessary and also to establish specific practices, as necessary, through its Rules of Procedure.]

The main function of the Committee shall be to promote respect for and defense of the human rights of persons with disabilities. In the exercise of its mandate, it shall have the following functions and powers:

a) to develop an awareness of the rights of persons with disabilities among the peoples of the world;

b) to make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights;

c) to prepare such studies or reports as it considers advisable in the performance of its duties;

d) to request the governments of the member states to supply it with information on the measures adopted by them in matters of the rights of persons with disabilities;

e) to respond, [through the General Secretariat of the United Nations,] to inquiries made by the member states on matters related to the human rights of persons with disabilities and, within the limits of its possibilities, to provide those states with the advisory services they request;

f) to take action on petitions and other communications pursuant to its authority under the provisions of Articles 45 through 48 of this Convention; and

g) to submit an annual report to the General Assembly of the United Nations.

Article 42 – Follow-up

1. States Parties shall make their reports and the comments, observations and recommendations of the Committee on those reports, widely available to the public in their own countries [ADD: in accessible formats].

2. . . .

Article 43 – Annual report of the Committee

1. The Committee shall report annually to the General Assembly of the United Nations on all its activities [ADD: “and shall make its reports public.”].

2. . . .

Article 45 – Individual communications

1. [DELETE] A State party may, at the time of ratification or at any time afterwards, declare that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals or groups subject to its jurisdiction claiming to be victims of a violation by this State party of the provisions of this Convention. The Committee shall not receive a communication if it concerns a State party that has not made such a declaration.

REPLACE with: “Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. [Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf, as in circumstances when access to such individuals is impeded.]”

[Justification: The issue of opt-in or opt-out should be removed to a separate paragraph from this one, which establishes standing. The proposed text comes from OP-CEDAW Article 2, with an additional clause attached to the end of the second sentence to indicate the narrowness of the exception to consent. The bracketed last sentence may be omitted. We include it here only to emphasize two key principles: (1) petitions should not be submitted on behalf of individuals without their free and informed consent (informing them of the petition is not enough; they should have direct input in any individual communication lodged on their behalf); (2) there are some individuals for whom consent cannot be obtained because they are locked away in institutions without access to the outside world and without the outside world having access to them; their situation is akin to a “forced disappearance”—the precise reason this exception was specified in the OP-CEDAW. They need to have access to some form of international communication procedure—if only to ensure that they have the ability to be informed of and consent to a petition being lodged on their behalf for the alleged violation of other rights.]

NEW PARAGRAPH 1.BIS (Opt-out procedure)

1bis. A State party may, at the time of ratification or at any time afterwards, declare that it does not recognize the competence of the Committee to receive and consider the communications referenced in paragraph 1.

[Justification: If there is an option at all with respect to individual petitions, it should be an opt-out and not an opt-in. We note that there is no option (either opt-in or opt-out) for individual petitions submitted to the Inter-American Commission on Human Rights against States Parties thereto (there is only an opt-in provision for State-to-State petitions.)]

2. The Committee shall consider a communication inadmissible when:

(a) the communication is anonymous;

(b) [DELETE] the communication constitutes an abuse of the right of submission of such communications or is incompatible with the provisions of this Convention;

(e) all effective available domestic remedies have not been exhausted. This rule shall not apply where the application of the remedies is unreasonably prolonged [ADD: “, the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated or the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them.”]

[Justification: These are the two additional generally-recognized exceptions to the exhaustion rule in international law. This proposed text—which comes directly from American Convention art. 46.2.a) and b)—could be streamlined provided the two additional exceptions are recognized. If not, a negative inference might be taken. A more streamlined formulation might read “unreasonable prolonged or unlikely to bring effective relief,” allowing for further specification in the Committee’s Rules of Procedure]

3. [DELETE.] Unless the Committee considers a communication inadmissible without reference to the State party concerned, the Committee shall bring that communication confidentially to the attention of the State party concerned. Within six months, the receiving State party shall submit to the Committee written explanations clarifying the matter and the remedy, if any that may have been provided.

REPLACEMENT TEXT: “Unless the Committee considers a communication inadmissible without reference to the State party concerned, the Committee shall transmit the communication to the State Party concerned. That State Party shall submit to the Committee written explanations clarifying the matter and the remedy, if any that may have been provided, within a reasonable period to be determined by the Committee in accordance with the circumstances of each case.”

[Justification: There is no need for this process to be “confidential.” This treaty body should move away from confidential procedures and should try to maintain as much openness as possible. It is sufficient to simply state that the Committee shall transmit the communication to the State Party concerned. At the same time, specific time limits should not be specified in the text of the Convention. The example of the Inter-American Commission should be followed, in which the Commission itself sets the prescribed time for receipt of a State response based on the severity and urgency of the matter under consideration. The American Convention text states that “This information shall be submitted within a reasonable period to be determined by the Commission in accordance with the circumstances of each case.”

To be clear on the procedure to be used, and to ensure that the principle of adversariality and representation is adequately respected in the individual communications procedure, we recommend that the procedure followed by the Inter-American Commission be followed by the Committee. The quasi-judicial process used by the Commission is fair and sufficiently interactive that the views of both parties can be fully expressed, allowing the details and complexity of the matter under consideration to be fully understood. As such, it forms a good basis for the Committee, if it is also to be an effective body whose work is respected by both governments and civil society. We include the proposed text below, which is based on Articles 48-51 of the American Convention.

3. When the Committee receives a petition or communication alleging violation of any of the rights protected by this Convention, it shall proceed as follows:

a. If it considers the petition or communication admissible, it shall request information from the government of the state indicated as being responsible for the alleged violations and shall furnish that government a transcript of the pertinent portions of the petition or communication. This information shall be submitted within a reasonable period to be determined by the Committee in accordance with the circumstances of each case.

b. After the information has been received, or after the period established has elapsed and the information has not been received, the Committee shall ascertain whether the grounds for the petition or communication still exist. If they do not, the Committee shall order the record to be closed.

c. The Committee may also declare the petition or communication inadmissible or out of order on the basis of information or evidence subsequently received.

d. If the record has not been closed, the Committee shall, with the knowledge of the parties, examine the matter set forth in the petition or communication in order to verify the facts. If necessary and advisable, the Committee shall carry out an investigation, for the effective conduct of which it shall request, and the states concerned shall furnish to it, all necessary facilities.

e. The Committee may request the states concerned to furnish any pertinent information and, if so requested, may hear oral statements or receive written statements from the parties concerned.

f. The Committee shall place itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention.

4. However, in serious and urgent cases, only the presentation of a petition or communication that fulfills all the formal requirements of admissibility shall be necessary in order for the Committee to conduct an investigation with the prior consent of the state in whose territory a violation has allegedly been committed.

5. If a friendly settlement has been reached in accordance with paragraph 1.f of Article 48, the Committee shall draw up a report, which shall be transmitted to the petitioner and to the States Parties to this Convention, and shall then be communicated to the Secretary General of the Organization of American States for publication. This report shall contain a brief statement of the facts and of the solution reached. If any party in the case so requests, the fullest possible information shall be provided to it.

6. If a settlement is not reached, the Committee shall, within the time limit established by its Statute, draw up a report setting forth the facts, stating its conclusions, and making pertinent recommendations. Where appropriate, it shall prescribe a period within which the state is to take the measures that are incumbent upon it to remedy the situation examined. If the report, in whole or in part, does not represent the unanimous agreement of the members of the Committee, any member may attach to it a separate opinion.

7. The report shall be transmitted to the states concerned. In transmitting the report, the Committee may make such proposals and recommendations as it sees fit.

8. The State party shall submit to the Committee, within a reasonable period to be determined by the Commission in accordance with the circumstances of each case, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

9. The Committee may invite the State party to submit further information about any measures the State party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 38 of this Convention. Appropriate follow-up shall be provided, as required.

4. [DELETE THIS PARAGRAPH (Concept moved to separate paragraph below)] At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State party concerned for its urgent consideration a request that the State party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation. Where the Committee exercises its discretion, this does not imply a determination on admissibility or on the merits of the communication.

[Justification: Availability of interim measures, by virtue of their urgency, should not be limited to the period between the submission of a petition and a merits decision by the Committee. In other systems, they are available both before a petition is submitted and after a decision on the merits has been issued. This is essential to serve their purpose of protecting individuals from grave, urgent and irreparable harm. In urgent situations there is insufficient time to exhaust domestic remedies and file a petition on the merits before seeking precautionary measures.]

5. [DELETE PARAGRAPH.] The Committee shall consider communications in the light of information made available to it by their authors and by the State party concerned, provided that this information is transmitted to the parties concerned.

[Justification: Not necessary to include this here. The principle of adversariality is well-established in quasi-adjudicatory procedures. At the same time, it might prohibit the receipt of amicus briefs to the extent the Committee decides that this may be useful, as the regional systems have so decided. The Committee should have the freedom to regulate this through its Rules of Procedure, as it sees fit, while always respecting the principle of adversariality.]

6. [DELETE PARAGRAPH]. The Committee shall hold closed meetings when examining communications under the present article. After examining a communication, the Committee shall transmit its views and recommendations, if any, to the parties concerned

[Justification: This concept is moved to proposed text above in bold. There is no need, however, to specify “closed meeting,” as this is general practice when Committee members make a decision about a case. It risks being misinterpreted to prevent oral interventions should the Committee at some time find this useful and appropriate.]

7. [DELETE PARAGRAPH.] The State party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

[Justification: This concept is moved to proposed text above in bold, deleting any reference to fixed time frames—which should be left to the discretion of the Committee according to the circumstances of the case before it.]

8. [TEXT MOVED TO MODIFIED ART. 45(9).] The Committee may invite the State party to submit further information about any measures the State party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 38 of this Convention.

1. In serious and urgent cases, and whenever necessary according to the information available, the Committee may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.

2. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures.

3. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.

4. If it deems it necessary and advisable, the Commission may carry out an on site investigation with the consent of the State concerned, for the effective conduct of which it shall request and the State concerned shall furnish all pertinent facilities.

[DELETE FOLLOWING TEXT—this too closely approximates the confidential 1503 procedure of the Commission on Human Rights, which has proved ineffectual. Inquiries or investigations of “grave and systematic violations” should not be “confidential” and should not be subject to fixed 6 month time limits. Discretion must be left with the Committee to respond effectively. Also, there should be no opt-out for this provision. Most treaty bodies have already established this practice in their ad-hoc work and do not recognize opt-outs, except for onsite visits. We should not take a step backwards with this treaty body.]

1. If the Committee becomes aware of reliable information indicating grave or systematic violations by a State party of rights set forth in the Convention, the Committee shall invite that State party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the State party concerned as well as any other reliable information available to it, the Committee (may designate one or more of its members), to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State party concerned, together with any comments and recommendations.

4. The State party concerned shall, within six months of receiving the findings, comments and recommendations, transmitted by the Committee, submit its observations to the Committee.

5. Such an inquiry shall be conducted confidentially and the cooperation of the State party shall be sought at all stages of the proceedings.

6. The Committee may invite the State party concerned to include in its report under article 38 of this Convention, details of any measures taken in response to an inquiry conducted under this article.

7. The Committee may, if necessary, after the end of the period of six months referred to in article 46.4, invite the State party concerned to inform it of the measures taken in response to such an inquiry. (OP to CEDAW, articles 8 and 9)

8. At the time of signature or ratification of the present Convention, or accession thereto, a State party may declare that it does not recognize the competence of the Committee provided for in this article. Any State party having made such a declaration may, at any time, withdraw it by notification to the Secretary-General (CEDAWOP, article 10).

Article 47 – Interstate complaints procedure

[DELETE AS UNNECESSARY]

Article 48 - Studies, thematic work and visits to States parties

1. The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of persons with disabilities. [ADD: “It may also undertake such studies on its own behalf.”]

2. The Committee may conduct thematic consultations with States parties, United Nations bodies and other competent international and national bodies on any matter addressed in this Convention (based on discussion day/ thematic discussion practice)

ADD NEW 2BIS. “The Committee may decide to hold hearings on its own initiative or at the request of an interested party. The decision to convoke the hearings shall be made by the President of the Committee, at the proposal of the Secretariat.”

[Justification: One of the most effective promotional mechanisms in the inter-American human rights system is the practice of the Inter-American Commission on Human Rights to grant thematic hearings on different subjects affecting the rights protected in the American Convention. This allows civil society to present information to the Commission, in a non-contentious manner, about broad human rights issues affecting persons in particular countries. (Hearings are usually granted for one hour.) This serves to aid the Commission’s understanding of distinct human rights issues, as well as facilitate civil society’s interaction with and understanding of the inter-American human rights organs. It can lead to the Commission drafting thematic reports on distinct issues to the extent patterns of abuse across the continent become evident on a particular matter.]

3. With the consent of the State party, the Committee may conduct a visit to its territory, in particular to provide assistance on implementation of the Convention. The Committee may also convene national, sub-regional and regional seminars on any aspect of the Convention. (practice of treaty bodies)

Article 49

Each State party undertakes to make widely known and give publicity to the Convention and to facilitate access to information about the work and recommendations of the Committee, in particular on matters involving that State party (CEDAWOP article13 modified).

PEOPLE WITH DISABILITY AUSTRALIA INCORPORATED (PWDA)

Commentary by
(Australian) National Association of Community Legal Centres

National and International Implementation & Monitoring

It is vital that this convention has strong national and international implementation and monitoring provisions.
At the international level the implementation and monitoring provisions of the convention should:

Establish a treaty monitoring body, constituted by persons with specific expertise in the area of disability. It was generally agreed that this body should be constituted by a majority of experts with disability, drawn from a variety of impairment backgrounds;

Require States to submit periodic reports outlining their progress in implementing the convention at the domestic level for examination by the treaty monitoring body. In this respect, it was generally thought that a 5 yearly reporting cycle was appropriate;

Establish a procedure for complaints to be made to the treaty body by (or in respect of) individuals with disability and classes of persons with disability where there has been breach of their rights under the convention, and where no domestic remedy is available;

Establish a conciliation commission to resolve major breaches of human rights through high-level international dialogue;

Ensure the referral of issues of concern to United Nations specialist agencies for attention;

Establish a position and office of Special Rapporteur on Disability that would have the role of:

Coordinating the work of the treaty body, conciliation commission, and complaints procedure;

Promoting and monitoring the implementation of the convention internationally;

Drawing the international community’s attention to areas of key concern, and promoting international cooperation, where applicable, to address them;

Developing guidance and advisory materials on implementation measures for distribution within the international community;

Facilitating international cooperation and dialogue in relation to cross jurisdictional problems;

Ensuring that the obligations set out in the convention are promoted and applied throughout the United Nations system, agencies and initiatives, and through other intergovernmental and international civil society organisations and corporations;

Maintaining dialogue with disabled peoples’ organisations in relation to these matters.

1. The Committee shall consist of eighteen experts of high moral standing, and recognized competence and experience in the field covered by this Convention [replace “covered by this Convention” with “of human rights and disability”].

2. . . .

3. The members of the Committee shall be elected by secret ballot from a list of candidates possessing the qualifications and meeting the requirements set out in paragraphs 1 and 2 of this article, half of which is to be nominated by States Parties, and half of which is to be nominated by the [MAINTAIN ONLY “High Commissioner for Human Rights”.]

4. Each State party may nominate one person from among its nationals [DELETE: “from among its nationals”—too prescriptive] in consultation with competent national bodies. [Nominations by the Secretary-General/High Commissioner for Human Rights shall also be made in consultation with competent national bodies.]
. . . .

[ADD NEW ARTICLE 38bis – Functions of Committee. This is necessary to ensure Committee’s mandate is broad and flexible. Details can be spelled out in Committee’s Rules of Procedure. The following proposed text comes from Article 41 of the American Convention on Human Rights, with amendments to make it specific to the rights of persons with disabilities. It uses broad language to ensure that the Committee has the functional competence to adopt ad-hoc procedures as necessary and also to establish specific practices, as necessary, through its Rules of Procedure.]

The main function of the Committee shall be to promote respect for and defense of the human rights of persons with disabilities. In the exercise of its mandate, it shall have the following functions and powers:

to develop an awareness of the rights of persons with disabilities among the peoples of the world;

to make recommendations to the governments of the member states, when it considers such action advisable, for the adoption of progressive measures in favor of human rights within the framework of their domestic law and constitutional provisions as well as appropriate measures to further the observance of those rights;

to prepare such studies or reports as it considers advisable in the performance of its duties;

to request the governments of the member states to supply it with information on the measures adopted by them in matters of the rights of persons with disabilities;

to respond, [through the General Secretariat of the United Nations,] to inquiries made by the member states on matters related to the human rights of persons with disabilities and, within the limits of its possibilities, to provide those states with the advisory services they request;

to take action on petitions and other communications pursuant to its authority under the provisions of Articles 45 through 48 of this Convention; and

to submit an annual report to the General Assembly of the United Nations.

Article 42 – Follow-up

1. States Parties shall make their reports and the comments, observations and recommendations of the Committee on those reports, widely available to the public in their own countries [ADD: in accessible formats].
2. . . .

Article 43 – Annual report of the Committee

1. The Committee shall report annually to the General Assembly of the United Nations on allits activities [ADD: “and shall make its reports public.”].
2. . . .

Article 45 – Individual communications

1. [DELETE] A State party may, at the time of ratification or at any time afterwards, declare that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals or groupssubject to its jurisdiction claiming to be victims of a violation by this State party of the provisions of this Convention. The Committee shall not receive a communication if it concerns a State party that has not made such a declaration.

REPLACE with: “Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the rights set forth in the Convention by that State Party. [Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf, as in circumstances when access to such individuals is impeded.]”

[Justification: The issue of opt-in or opt-out should be removed to a separate paragraph from this one, which establishes standing. The proposed text comes from OP-CEDAW Article 2, with an additional clause attached to the end of the second sentence to indicate the narrowness of the exception to consent. The bracketed last sentence may be omitted. We include it here only to emphasize two key principles: (1) petitions should not be submitted on behalf of individuals without their free and informed consent (informing them of the petition is not enough; they should have direct input in any individual communication lodged on their behalf); (2) there are some individuals for whom consent cannot be obtained because they are locked away in institutions without access to the outside world and without the outside world having access to them; their situation is akin to a “forced disappearance”—the precise reason this exception was specified in the OP-CEDAW. They need to have access to some form of international communication procedure—if only to ensure that they have the ability to be informed of and consent to a petition being lodged on their behalf for the alleged violation of other rights.]

NEW PARAGRAPH 1.BIS (Opt-out procedure)

1bis. A State party may, at the time of ratification or at any time afterwards, declare that it does not recognize the competence of the Committee to receive and consider the communications referenced in paragraph 1.

[Justification: If there is an option at all with respect to individual petitions, it should be an opt-out and not an opt-in. We note that there is no option (either opt-in or opt-out) for individual petitions submitted to the Inter-American Commission on Human Rights against States Parties thereto (there is only an opt-in provision for State-to-State petitions.)]

(c) is manifestly ill-founded or not sufficiently substantiated;
(d) . . . ; or when

all effective available domestic remedies have not been exhausted. This rule shall not apply where the application of the remedies is unreasonably prolonged [ADD: “, the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated or the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them.”]

[Justification:These are the two additional generally-recognized exceptions to the exhaustion rule in international law. This proposed text—which comes directly from American Convention art. 46.2.a) and b)—could be streamlined provided the two additional exceptions are recognized. If not, a negative inference might be taken.A more streamlined formulation might read “unreasonable prolonged or unlikely to bring effective relief,” allowing for further specification in the Committee’s Rules of Procedure]

3. [DELETE.] Unless the Committee considers a communication inadmissible without reference to the State party concerned, the Committee shall bring that communication confidentially to the attention of the State party concerned. Within six months, the receiving State party shall submit to the Committee written explanations clarifying the matter and the remedy, if any that may have been provided.

REPLACEMENT TEXT: “Unless the Committee considers a communication inadmissible without reference to the State party concerned, the Committee shall transmit the communication to the State Party concerned. That State Party shall submit to the Committee written explanations clarifying the matter and the remedy, if any that may have been provided, within a reasonable period to be determined by the Committee in accordance with the circumstances of each case.”

[Justification: There is no need for this process to be “confidential.” This treaty body should move away from confidential procedures and should try to maintain as much openness as possible. It is sufficient to simply state that the Committee shall transmit the communication to the State Party concerned. At the same time, specific time limits should not be specified in the textof the Convention. The example of the Inter-American Commission should be followed, in which the Commission itself sets the prescribed time for receipt of a State response based on the severity and urgency of the matter under consideration. The American Convention text states that “This information shall be submitted within a reasonable period to be determined by the Commission in accordance with the circumstances of each case.”

To be clear on the procedure to be used, and to ensure that the principle of adversariality and representation is adequately respected in the individual communications procedure, we recommend that the procedure followed by the Inter-American Commission be followed by the Committee. The quasi-judicial process used by the Commission is fair and sufficiently interactive that the views of both parties can be fully expressed, allowing the details and complexity of the matter under consideration to be fully understood. As such, it forms a good basis for the Committee, if it is also to be an effective body whose work is respected by both governments and civil society. We include the proposed text below, which is based on Articles 48-51 of the American Convention.

3. When the Committee receives a petition or communication alleging violation of any of the rights protected by this Convention, it shall proceed as follows:

If it considers the petition or communication admissible, it shall request information from the government of the state indicated as being responsible for the alleged violations and shall furnish that government a transcript of the pertinent portions of the petition or communication. This information shall be submitted within a reasonable period to be determined by the Committee in accordance with the circumstances of each case.

After the information has been received, or after the period established has elapsed and the information has not been received, the Committee shall ascertain whether the grounds for the petition or communication still exist. If they do not, the Committee shall order the record to be closed.

The Committee may also declare the petition or communication inadmissible or out of order on the basis of information or evidence subsequently received.

If the record has not been closed, the Committee shall, with the knowledge of the parties, examine the matter set forth in the petition or communication in order to verify the facts. If necessary and advisable, the Committee shall carry out an investigation, for the effective conduct of which it shall request, and the states concerned shall furnish to it, all necessary facilities.

The Committee may request the states concerned to furnish any pertinent information and, if so requested, may hear oral statements or receive written statements from the parties concerned.

The Committee shall place itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention.

4. However, in serious and urgent cases, only the presentation of a petition or communication that fulfills all the formal requirements of admissibility shall be necessary in order for the Committee to conduct an investigation with the prior consent of the state in whose territory a violation has allegedly been committed.

5. If a friendly settlement has been reached in accordance with paragraph 1.f of Article 48, the Committee shall draw up a report, which shall be transmitted to the petitioner and to the States Parties to this Convention, and shall then be communicated to the Secretary General of the Organization of American States for publication. This report shall contain a brief statement of the facts and of the solution reached. If any party in the case so requests, the fullest possible information shall be provided to it.
6. If a settlement is not reached, the Committee shall, within the time limit established by its Statute, draw up a report setting forth the facts, stating its conclusions, and making pertinent recommendations. Where appropriate, it shall prescribe a period within which the state is to take the measures that are incumbent upon it to remedy the situation examined. If the report, in whole or in part, does not represent the unanimous agreement of the members of the Committee, any member may attach to it a separate opinion.
7. The report shall be transmitted to the states concerned. In transmitting the report, the Committee may make such proposals and recommendations as it sees fit.
8. The State party shall submit to the Committee, within a reasonable period to be determined by the Commission in accordance with the circumstances of each case, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

9. The Committee may invite the State party to submit further information about any measures the State party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 38 of this Convention. Appropriate follow-up shall be provided, as required.

[DELETE THIS PARAGRAPH (Concept moved to separate paragraph below)] At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee may transmit to the State party concerned for its urgent consideration a request that the State party take such interim measures as may be necessary to avoid possible irreparable damage to the victim or victims of the alleged violation. Where the Committee exercises its discretion, this does not imply a determination on admissibility or on the merits of the communication.

[Justification: Availability of interim measures, by virtue of their urgency, should not be limited to the period between the submission of a petition and a merits decision by the Committee. In other systems, they are available both before a petition is submitted and after a decision on the merits has been issued. This is essential to serve their purpose of protecting individuals from grave, urgent and irreparable harm. In urgent situations there is insufficient time to exhaust domestic remedies and file a petition on the merits before seeking precautionary measures.]

5. [DELETE PARAGRAPH.] The Committee shall consider communications in the light of information made available to it by their authors and by the State party concerned, provided that this information is transmitted to the parties concerned.

[Justification:Not necessary to include this here. The principle of adversariality is well-established in quasi-adjudicatory procedures. At the same time, it might prohibit the receipt of amicus briefs to the extent the Committee decides that this may be useful, as the regional systems have so decided. The Committee should have the freedom to regulate this through its Rules of Procedure, as it sees fit, while always respecting the principle of adversariality.]

6. [DELETE PARAGRAPH]. The Committee shall hold closed meetings when examining communications under the present article. After examining a communication, the Committee shall transmit its views and recommendations, if any, to the parties concerned

[Justification: This concept is moved to proposed text above in bold. There is no need, however, to specify “closed meeting,” as this is general practice when Committee members make a decision about a case. It risks being misinterpreted to prevent oral interventions should the Committee at some time find this useful and appropriate.]

7. [DELETE PARAGRAPH.] The State party shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations of the Committee.

[Justification: This concept is moved to proposed text above in bold, deleting any reference to fixed time frames—which should be left to the discretion of the Committee according to the circumstances of the case before it.]

8. [TEXT MOVED TO MODIFIED ART. 45(9).] The Committee may invite the State party to submit further information about any measures the State party has taken in response to its views or recommendations, if any, including as deemed appropriate by the Committee, in the State Party’s subsequent reports under article 38 of this Convention.

1. In serious and urgent cases, and whenever necessary according to the information available, the Committee may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.

2. The Commission may request information from the interested parties on any matter related to the adoption and observance of the precautionary measures.

3. The granting of such measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.

4. If it deems it necessary and advisable, the Commission may carry out an on‑site investigation with the consent of the State concerned, for the effective conduct of which it shall request and the State concerned shall furnish all pertinent facilities.

[DELETE FOLLOWING TEXT—this too closely approximates the confidential 1503 procedure of the Commission on Human Rights, which has proved ineffectual. Inquiries or investigations of “grave and systematic violations” should not be “confidential” and should not be subject to fixed 6 month time limits. Discretion must be left with the Committee to respond effectively. Also, there should be no opt-out for this provision. Most treaty bodies have already established this practice in their ad-hoc work and do not recognize opt-outs, except for onsite visits. We should not take a step backwards with this treaty body.]

1. If the Committee becomes aware of reliable information indicating grave or systematic violations by a State party of rights set forth in the Convention, the Committee shall invite that State party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned.

2. Taking into account any observations that may have been submitted by the State party concerned as well as any other reliable information available to it, the Committee (may designate one or more of its members), to conduct an inquiry and to report urgently to the Committee. Where warranted and with the consent of the State party, the inquiry may include a visit to its territory.

3. After examining the findings of such an inquiry, the Committee shall transmit these findings to the State party concerned, together with any comments and recommendations.

4. The State party concerned shall, within six months of receiving the findings, comments and recommendations, transmitted by the Committee, submit its observations to the Committee.

5. Such an inquiry shall be conducted confidentially and the cooperation of the State party shall be sought at all stages of the proceedings.

6. The Committee may invite the State party concerned to include in its report under article 38 of this Convention, details of any measures taken in response to an inquiry conducted under this article.

7. The Committee may, if necessary, after the end of the period of six months referred to in article 46.4, invite the State party concerned to inform it of the measures taken in response to such an inquiry. (OP to CEDAW, articles 8 and 9)

8. At the time of signature or ratification of the present Convention, or accession thereto, a State party may declare that it does not recognize the competence of the Committee provided for in this article. Any State party having made such a declaration may, at any time, withdraw it by notification to the Secretary-General (CEDAWOP, article 10).

Article 47 – Interstate complaints procedure

[DELETE AS UNNECESSARY]

Article 48 - Studies, thematic work and visits to States parties

1. The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the rights of persons with disabilities. [ADD: “It may also undertake such studies on its own behalf.”]

2. The Committee may conduct thematic consultations with States parties, United Nations bodies and other competent international and national bodies on any matter addressed in this Convention (based on discussion day/ thematic discussion practice)

ADD NEW 2BIS. “The Committee may decide to hold hearings on its own initiative or at the request of an interested party. The decision to convoke the hearings shall be made by the President of the Committee, at the proposal of the Secretariat.”

[Justification: One of the most effective promotional mechanisms in the inter-American human rights system is the practice of the Inter-American Commission on Human Rights to grant thematic hearings on different subjects affecting the rights protected in the American Convention. This allows civil society to present information to the Commission, in a non-contentious manner, about broad human rights issues affecting persons in particular countries. (Hearings are usually granted for one hour.) This serves to aid the Commission’s understanding of distinct human rights issues, as well as facilitate civil society’s interaction with and understanding of the inter-American human rights organs. It can lead to the Commission drafting thematic reports on distinct issues to the extent patterns of abuse across the continent become evident on a particular matter.]

3. With the consent of the State party, the Committee may conduct a visit to its territory, in particular to provide assistance on implementation of the Convention. The Committee may also convene national, sub-regional and regional seminars on any aspect of the Convention. (practice of treaty bodies)

Article 49

Each State party undertakes to make widely known and give publicity to the Convention and to facilitate access to information about the work and recommendations of the Committee, in particular on matters involving that State party (CEDAWOP article13 modified).

PWDA
Report on National Consultations

Article 34: International Monitoring

Participants strongly supported mechanisms for international monitoring of the convention. Many participants indicated concern that monitoring mechanisms of existing treaties afford States to provide minimal reporting information including superficial reports on meeting obligations contained in conventions. In addition, participants argued strongly that there must be a mechanism for individual persons with disability to take potential breaches to an international arbiter at the United Nations. It could be modelled along the lines of the Optional Protocol to the ICCPR, and be accessible once domestic remedies are exhausted.

Several other features of an international monitoring component were discussed. These include:

Recommended text:

Establish a treaty monitoring body, constituted by persons with specific expertise in the area of disability. It was generally agreed that this body should be constituted by a majority of experts with disability, drawn from a variety of impairment backgrounds;

Require States to submit periodic reports outlining their progress in implementing the convention at the domestic level for examination by the treaty monitoring body. In this respect, it was generally thought that a 5 yearly reporting cycle was appropriate;

Establish a procedure for complaints to be made to the treaty body by (or in respect of) individuals with disability and classes of persons with disability where there has been breach of their rights under the convention, and where no domestic remedy is available;

Establish a conciliation commission to resolve major breaches of human rights through high-level international dialogue;

Ensure the referral of issues of concern to United Nations specialist agencies for attention;

Establish a position and office of Special Rapporteur on Disability that would have the role of:

Coordinating the work of the treaty body, conciliation commission, and complaints procedure;

Promoting and monitoring the implementation of the convention internationally;

Drawing the international community’s attention to areas of key concern, and promoting international cooperation, where applicable, to address them;

Developing guidance and advisory materials on implementation measures for distribution within the international community;

Facilitating international cooperation and dialogue in relation to cross jurisdictional problems;

Ensuring that the obligations set out in the convention are promoted and applied throughout the United Nations system, agencies and initiatives, and through other intergovernmental and international civil society organisations and corporations;

Maintaining dialogue with disabled peoples’ organisations in relation to these matters.

Special Rapporteurs

SPECIAL RAPPORTEUR ON DISABILITY

Monitoring

I am in complete agreement that we need to make use of the international experiences in monitoring that have governed other treaties (Human Rights, Women, Children…etc). At the same time we need to learn from them, in the sense that we should adopt their strengths and avoid the weaknesses that have become clear through years of practice.

The Convention that we are in process of drafting is unlike other conventions in that its purpose is not promote, protect and strengthen government action on the issues of one group of persons—i.e. such women or children. It is rather, a Convention that carries unprecedented moral and legal obligations and invites the international community to change its views, its knowledge, its direction, its behaviour and attitudes, its manner to manner of dealing with an entire population which encompasses women, men, children, the elderly. A population that has been marginalized and is also included among the most marginalized in the world: minorities, immigrants, refugees, the poor—whose marginalization is compounded by their disability. In short, we are drafting a document that is intended to change our perception of human beings and which will reinforce the value of all human beings by liberating persons with disabilities from discrimination, prejudice, neglect, pity and giving them their rightful place as equals.

Therefore, our success in putting forth an effective monitoring mechanism is the only guarantee we have to achieve this change and to reinterpret human values in a way that is unequivocal and which speaks to the principle: What is good for us is good for all.

Based on this vision, I suggest the following:

A comprehensive monitoring mechanism which takes into consideration the national, regional and international dimensions.

At the national level:

- Establishing a national commission to monitor implementation in each of the countries signatory to the Convention. Such a commission should include representatives from disabled persons organizations and activists from the disability movement specialized in the legal aspects covered in the Convention, whose activities would be to monitor government actions in implementing the Convention and recording violations in each of these countries.

- Appointing an Ombudsman (person) in each of these countries to receive the recorded violations and deal with them at the national level.
At the regional level:

- Establishing (or linking with an existing regional body) a regional committee to monitor the implementation of the Convention, in addition to following up, supporting and assisting governments in implementing the articles of the Convention.
At the international level:

- Establishing an international commission made up of experts in the field, activist, legal and human rights experts and representatives of disabled persons organizations whose duty is to review the reports of the national commissions, the Ombudsmen and the regional committee.

- This commission would work in close collaboration with an independent Special Rapporteur mandated to monitor the implementation of the Convention, but is also required to advocate for the Convention, support governments in their implementation strategies, encourage international cooperation on implementation and raise awareness of its importance.

Mr. Chair, Members of the Bureau

Having a strong mechanism for monitoring with air-tight procedures and a system of accountability is the only guarantee that this Convention will be fully implemented by governments.

The absence of such a monitoring mechanism will deprive the international community of the benefits and the great potential that this Convention carries towards changing attitudes, values, behaviours, and will greatly curb the positive effects we all hope it will have on the lives of persons with disabilities.